Friday, July 17, 2015

The Hotel, Rape and Hearsay

This post examines a recent opinion from the Court of Special Appeals of Maryland:Baker v. State, 2015 WL 4081297 (2015).
The court begins the opinion by explaining how the case arose:

On November 8, 2013, Michael Edward Baker, appellant, was
arrested and charged with second degree rape, second degree sex offense, fourth
degree sex offense, second degree assault, and impersonating a police officer. [Baker]
subsequently was convicted, in the Circuit Court for Cecil County, of each
offense, and the court sentenced him to a prison term of ten years.

Baker v. State, supra.In a footnote, the Court of Special Appeals
notes that the trial judge sentenced Baker

as follows: ten years for the second degree rape conviction;
ten years, consecutive, all suspended, for the second degree sex offense
conviction; six months, consecutive, all suspended, for the impersonating a
police officer conviction. The remaining convictions were merged for sentencing
purposes.

Baker v. State, supra.

Baker raised three issues in his appeal:

1.Did the circuit court err in admitting call
records obtained from appellant's phone service provider and expert testimony
relating to the records?2.Did the circuit court err in failing to exclude
appellant's statement to the police?3.Did the prosecutor's closing argument constitute
plain error?

Baker v. State, supra.The Court of Special Appeals only addressed
the first issue, for reasons that are explained below.

It began its analysis of Baker’s arguments on appeal
by explaining how, and why, the prosecution arose:

On July 18, 2013, the victim, A.O. was `prostituting’ at the
Knights Inn on Belle Road in Cecil County.She testified that the
person she worked for, her former boyfriend, set up an advertisement on a
website, backpage.com, which listed a `Google account number,’ `a separate
[phone] number that rings to your personal phone.’Sometime after dark, she received a call from a man, whom
she later identified as [Baker], seeking an encounter with her. She told [Baker]
where to meet her, and he came to her hotel room between 7:00 and 9:00 p.m.[Baker] stated that he wanted to engage in oral and vaginal
sex without a condom. A.O. told him that she did not do that. [Baker] pulled
out what appeared to be a police badge and told A.O. that he was a police
officer. He said that if she did not do what he told her to do, he was going to
arrest her, and he `made [her] write down [her] information like a cop would do.’
He also informed her that `his supervisor was in a nearby room.’[Baker] then physically struck A.O. and forced her to engage
in oral and vaginal sex without the use of a condom. At one point during the
encounter, [he] appeared to receive a phone call, and he responded to the
person on the phone: `Yeah, I'm with her right now, she's scared, but there's
not really nothing here I could charge her for, so we will wrap things up.’ After [Baker] left, A.O. was `an emotional
wreck,’ and she told several girls that she worked with that she had been
raped.At some point in the week following the rape, [Baker] contacted
A.O. again. He told her: `Hey, it's Mike, the cop from the other night, I just
want to let you know that don't be out there tonight because they are doing
stings again,’ and he stated that he just wanted to warn her. After this call,
A.O. put [Baker’s] phone number in her cell phone under the contact name: `Do
not answer.’ The day after the second phone call, A.O.'s boyfriend arranged for
her to meet with a police officer, but A.O. was `still an emotional wreck,’ and
she refused to talk to the officer.

Baker v. State, supra.In a footnote, the court says it is using the
victim’s initials, rather than her name, to “protect her privacy.” Baker v. State, supra.

The opinion goes on to explain that in October of 2013,

Trooper First Class Alan Flaugher approached
A.O. to question her about the rape. Although A.O. was hesitant to talk to
Trooper Flaugher because she believed [Baker] was a police officer, and she `didn't
want to talk to another cop about what a cop did to’ her, she eventually spoke
with Trooper Flaugher. She showed Trooper Flaugher [Baker’s] number on her
phone and described how [he] raped her. Trooper Flaugher later showed her a
photo array, and A.O. identified a photograph of [Baker] as the man who raped
her. She also identified [Baker] in court.

Baker v. State, supra.You can, if you are interested, find a photo
of Baker and news stories that provide more details on the crime in the news
stories you can find here and here.

That brings us to Baker’s challenging the trial judge’s
admitting the call records into evidence at his trial.Baker
v. State, supra.The Court of
Special Appeals began its analysis of his argument by noting that

Trooper Flaugher testified that he obtained a number from
A.O.'s cell phone that she identified as the number of the man who raped her.
He further testified that, based on records he obtained from AT & T, he
identified that number as belonging to [Baker]. The call records reflected
that, on the evening of the rape, there were several calls from the number he
identified with [Baker] to A.O.'s phone number.

The Court of Special Appeals began its analysis of Baker’s
argument by explaining that

[o]n October 15, 2013, the circuit court issued an order
directing `AT&T/Cingular’ to produce `certified copies of subscriber
information, C.D.R. (call detail records), incoming and outgoing text message
phone numbers, and cell tower locations/records . . . from July 17, 2013 to
August 30, 2013’ for the cell phone number that A.O. identified as belonging to
the man who raped her. The State's Attorney's Office faxed the order to
`AT&T/Cingular Wireless.’AT&T responded with a cover letter stating: `All
available requested information is enclosed,’ along with the call records
directed to be provided by the circuit court's order. The logs indicate that
the phone number was owned by `Michael E. Baker,’ and they showed the calls
that the phone made, along with the cell phone towers from which each call
`pinged’ to connect to the call.The State attempted to admit into evidence the logs of the
calls made from [Baker’s] phone. The prosecution began by asking Trooper
Flaugher whether he obtained a phone number from A.O. related to her rape, and
when he indicated that he had done so, the prosecutor asked what, if anything,
Trooper Flaugher did with that number. [Baker’s] counsel objected, and a bench
conference ensued. [Baker’s] counsel argued that the State was trying to
establish that the number Trooper Flaugher got from A.O. was [Baker’s] number,
but it had `no witness from AT&T to enter [the] records into evidence,’ noting
that Trooper Flaugher was `not the custodian of records for AT&T,’ and the
records were not certified.When the court indicated that it was inclined to sustain the
objection, the prosecutor responded that Trooper Flaugher was an expert who
relied on the records in the course of his investigation, and the records were
admissible as the basis for his expert testimony, stating that, `even if the document
is not itself admitted into evidence, the facts contained within it can be
presented in trial as evidence.’ [Baker’s] counsel responded that the State had
not named any experts prior to trial. The prosecutor did not dispute that
assertion, but he stated that he had given [Baker’s] counsel `the courtesy of
bringing him in, sitting him down with [Trooper Flaugher], having [Trooper
Flaugher] . . . go through these records, explain to [Baker’s counsel] what
they meant and what the conclusions were.’ The prosecutor asserted that [Baker’s]
counsel knew `everything this witness is going to testify about.’

Baker v. State, supra.

The court then goes on to explain that Baker’s lawyer said

he believed Trooper Flaugher was going to use the records to
demonstrate that [Baker’s] cell phone was in a certain area because it pinged
certain cell phone towers. He argued that Trooper Flaugher should not be
permitted to give such expert testimony because he was not named as an expert,
and therefore, the defense had not obtained a `corresponding expert’ on this
issue. Accordingly, he asserted, the defense would be prejudiced by any
testimony regarding the location of calls based on cell tower pings.The prosecutor argued that, if the court determined the
State should be sanctioned for not disclosing Trooper Flaugher as an expert
witness, that sanction should not include disqualification of Trooper Flaugher
as a witness because [Baker’s] counsel had been informed of the testimony that
Trooper Flaugher was going to give.

Baker v. State, supra.The Court of Special Appeals goes on to
explain that the trial

court ruled that Trooper Flaugher would be permitted to
testify `about calls made but not locations,’ stating

`that is what the defense did not expect as far as his
expertise and indicated that he would have called somebody from AT & T or
somebody who could oppose the pings situation. So the [c]ourt will let Trooper
Flaugher testify as to the limited issues of calls made back and forth. [Baker’s
counsel] indicated he knew that would occur but not the locations.’

Baker v. State, supra.

The court goes on to explain that, after the
trial judge issued his/her

ruling, [Baker’s]counsel objected, expressing his continued
opposition to Trooper Flaugher's testimony:`Your Honor, but if he is going to testify to calls made, he
wouldn't be expressing any kind of expert opinion so he wouldn't be able to
testify as to the hearsay of when calls were made, because that information,
the business records exception to that would have to come from a qualified
witness who established that they were made for that.’He further stated that evidence `has to be authenticated. In
a case of this nature where he's talking about a third party's business
records, any reference to that at all has to come in by a custodian. . . . So
there's no way the [call records] come in.’

Baker v. State, supra.

The Court of Special Appeals then explained that the trial
judge rejected the argument made by Baker’s lawyer, explaining that

`I find he's an expert with regard to the cell phone issue.
What I find is that you had a surprise in not knowing that he was going to
testify as to the location. You said you knew that he was going to testify as
to the calls. I find that he's an expert in that and can testify.’As noted, Trooper Flaugher testified that the phone number
that A .O. identified as the number of the man who raped her belonged to [Baker].
He further testified that the call records showed that there were several calls
to A.O.'s phone number from [Baker’s] phone on the night A.O. was raped. The
call records were admitted into evidence after Trooper Flaugher's testimony.

Baker v. State, supra.

In his appeal, Baker argued that the trial judge erred in admitting the call records

connecting his phone with A.O.'s
phone. In that regard, he contends that the phone records were inadmissible hearsay.
He asserts that the court erred in admitting the records on the ground that
they served as the basis for Trooper Flaugher's expert opinion for three
reasons: (1) Trooper Flaugher did not give an expert opinion; (2) the records
were not trustworthy enough to form the basis for an expert opinion; and (3)
Trooper Flaugher `should not have been qualified as an expert because he was
not disclosed as one before trial.’

Baker v. State, supra.

The prosecution responded by arguing that the trial court

properly exercised its discretion in admitting the call
records because they were not hearsay, and `[a]s such, the only prerequisite
for admission of the call records was their authenticity, which was
established.’ Alternatively, it argues that, even if the AT&T records were
hearsay, the `evidence would support a holding that the records were
nevertheless admissible under the business records exception to the hearsay
rule. Accordingly, the State contends that “the trial court properly exercised
its discretion to admit cell phone records showing calls from [appellant] to
the victim.’

Baker v. State, supra.

Baker then argued, in response, that the Court of Special Appeals

should not accept the State's argument that
computer-generated documents are not hearsay. Second, he asserts that, even if
this Court were to adopt this position, there was no evidence here that the
phone records were `”produced by a machine, not a human declarant,”’ as the
State contends.”Third, he contends that, with respect to the evidence that
the number that called A.O.'s phone belonged to [Baker], `[i]t is difficult to
conceive how a record that connects a number to an individual's name could be
completely computer generated,’ noting that the `computer had to get Baker's
name from somewhere to put it on the record and connect it to the cell phone
number.’ Fourth, he argues that the argument that the records were admissible
under the business records exception to the hearsay rule was not raised below,
and `this Court should not find for the first time on appeal that the records
were authenticated business records.’ Moreover, he asserts that the `trial
court was not going to admit the records at all until the State argued that
they were the basis for an expert's opinion. Thus, the only indication from
below is that the court did not find them to be circumstantially
authenticated.’

Baker v. State, supra.

The court began its analysis of the arguments made by both
sides by explaining that

[b]ecause the issue as presented on appeal is whether the
call records were inadmissible hearsay, we begin our analysis with the
definition of hearsay. Pursuant to [Maryland Rule of Evidence] 5–801(c),
hearsay is `a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.’ [Maryland Rule of Evidence] 5–801(c).Here, there is no dispute that the call records were offered
for the truth of the matter asserted, i.e., that [Baker] called A.O. Rather,
the issue is whether the call records constituted a `statement.’ In that
regard, pursuant to this rule, evidence does not constitute a `statement’
unless it is made by a declarant, which is defined as `a person who
makes a statement.’ [Maryland Rule of Evidence] 5–801(b) (emphasis
added).

Baker v. State, supra.

It then noted that while “Maryland has not
specifically addressed whether computer records generally, or call records
specifically, constitute hearsay”, courts from other states have done so. Baker
v. State, supra. It explained that
in State v.
Austin, 146 So.3d 716 (Louisiana Court of Appeals 2014),police
officers

obtained Austin's cell phone records
from AT&T, and these records placed Austin in the area of the crime at the
time of the offense. The Court of Appeal of Louisiana rejected Austin's claim
that the cell phone records were hearsay, stating that the telephone records
were `”generated solely by the electrical and mechanical operations of the
computer and telephone equipment, and [are] not dependent upon the observations
and reporting of a human declarant.”’ State v. Austin, supra (quoting State
v. Austin, 113 So.3d 306 (Louisiana Court of Appeals 2013)).

Baker v. State, supra.

The Court of Special Appeals went on to explain that,

[t]o be sure, the view that computer-generated records in
general, and phone records in particular, are not hearsay is not shared by all
courts. See, e.g., Fry v. State, 885 N.E.2d 742 (Indiana Court of Appeals 2008) (cell phone records for telephone company are hearsay).
. . . We are persuaded, however, that the better reasoned view is that
computer-generated records generally do not constitute hearsay.When records are entirely self-generated by the internal
operations of the computer, they do not implicate the hearsay rule because they
do not constitute a statement of a `person.’ In that situation, the
admissibility of such data `”should be determined on the basis of the reliability
and accuracy of the process” used to create and obtain the data.’ State
v. Reynolds, 456 S.W.3d 101 (Missouri Court of Appeals 2015) (quoting State
v. Dunn, 7 S.W.3d 427 (Missouri
Court of Appeals 1999).

Baker v. State, supra.

It then applied the analyses outlined above to the
facts in this case, explaining that

we agree with the State that, to the extent that the call
records were computer-generated, they do not constitute hearsay. The problem in
this case, as [Baker] points out, is that there was no evidence presented
regarding how the call records were produced. Although it may be true that the
AT&T records tracing calls from one number to another were
computer-generated, . . ., the State here did not produce any evidence
to this effect. Without such evidence, this Court is unable to affirm the
admission of the call logs on the ground that they were computer-generated
evidence that did not qualify as hearsay.Moreover, another portion of the records admitted into evidence
likely was not computer-generated. The call records showed, and Trooper
Flaugher testified based on these records, that the number that called the
victim's phone the night of the rape belonged to [Baker]. Again, there was no
evidence how this data was generated, but it is unlikely that it was generated
solely by the internal operations of the computer itself, and more likely that
it was data entered by a person.

Baker v. State, supra.

Finally, the Court of Special Appeals explained that other
courts

have made a distinction between computer-generated records,
where the data is generated by the internal operations of the computer itself,
and computer-stored records, which reflect human input. In the latter
situation, courts have found that the computer records constitute
hearsay. See, e.g., in U.S. v. Cestnik, 36
F.3d 904 (U.S. Court of Appeals for the 10th Circuit 1994) (computer money
transfer records were hearsay where each transfer record was created by an
employee of the money transfer company directly entering the information into a
computer) . . . ; State v. Gojcaj, 151 Conn. App. 183, 92 A.3d
1056 (Connecticut Appellate Court 2014 (`Computer printouts that contain stored
human statements are hearsay when introduced for the truth of the matter
asserted in those statements’). . . ; Black v. State, 358
S.W.3d 823, (Texas Court of Appeals 2012) (text messages were
computer-stored information `produced by human thought and action, and
therefore they were hearsay).

Baker v. State, supra.

So the court held that, in this case,

as indicated, although there was no evidence adduced on this
issue, it is likely that the assertion in the computer records that the phone
number that called the victim was [Baker’s] number was an assertion made by a
person. Accordingly, we disagree with the State that we can affirm the
admission of this evidence on the ground that it did not constitute hearsay.

Baker v. State, supra.

It also held that,

in the absence of testimony from the custodian of records,
or any certification, the circuit court erred in admitting the call records. We
note, however, that if the case is tried again and the proper foundation is
laid, the records may be admissible.

Baker v. State, supra.It therefore reversed Baker’s conviction and remanded
the case “for further proceedings”, i.e., for Cecil County prosecutors to try
Baker again, if they decide that is appropriate.Baker
v. State, supra.

And if you were wondering why Baker can be retried even though he was tried once and convicted, because, as this site explains,

[g]enerally, a defendant who is successful in having his
conviction set aside on appeal may be tried again for the same offense, the
assumption being made in the first case on the subject that, by appealing, a
defendant has `waived'' his objection to further prosecution by challenging
the original conviction.